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20 April 2010
Two recent High Court cases addressed two procedural issues related to the defence of personal injuries actions: formal offers and verifying affidavits. The obligations on parties (ie, both plaintiff and defendant) to personal injury litigation in respect of formal offers and verifying affidavits are set out in the Civil Liability and Courts Act 2004. In the first case, the defendant succeeded in compelling the plaintiff to deliver a formal offer. In the second case, the defendant succeeded in having the plaintiff's case dismissed on the grounds that the plaintiff failed to validate the affidavit of verification.
Section 17 of the 2004 act requires both the plaintiff and the defendant to a personal injuries action to make a formal written offer of settlement to each other after the issue of proceedings and within two weeks of the service of the notice of trial. In Sheila O'Donnell v Gerard McEntee(1) the defendants sought an order compelling the plaintiff to issue a formal offer. Justice Kearns first clarified that the actual period within which formal offers should be made is between the date upon which the personal injury summons is served and 14 days after service of notice of trial. This is the 'prescribed period'. He rejected the plaintiff's assertion that Section 17 of the 2004 act allowed parties to the proceedings to make formal offers at any time (up to and during the trial itself). The court could not answer the question as to which party should make the formal offer first – the plaintiff or the defendant. Although the act does not require simultaneous offers (which would produce an 'absurd outcome'), Kearns was "unable to resolve the difficulty of who should go first without rewriting the legislation...". However, the court was satisfied that the act required both parties to make formal offers within the prescribed period and therefore granted the defendant's application, compelling the plaintiff to make a formal offer.
Section 14 of the act requires a plaintiff in a personal injuries action to sign an affidavit verifying that all allegations and assertions made in the pleadings are true. A person who makes a statement in a verifying affidavit that is either false or misleading in any material respect (or that he or she knows to be false or misleading) is guilty of an offence. In Michelle Walsh v South Dublin County Council(2) Justice Lavan found that the plaintiff's evidence in her pleadings and on cross-examination showed marked inconsistencies with respect to the timing and location of the accident. Such discrepancies were highlighted by the evidence given by medical personnel and medical records. As a result, the court ruled that the plaintiff could not "validate her affidavit of verification". The judge rejected both the plaintiff's evidence and that of her witnesses and dismissed the case. Lavan observed at the end of his judgment that:
"the Oireachtas [(Parliament)], being concerned with bogus claims, has moved to ensure that claims are verified. Where an affidavit of verification is sworn and subsequently proven to be wrong, then the offending party must pay the price for this."
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